Introduction

 

2.5   In Victoria, family provision is governed by part IV of the Administration and Probate Act 1958 (Vic). This Act allows people to make an application to the County Court or the Supreme Court for a share, or a larger share, of a deceased person’s estate, if the deceased person had responsibility to provide for them. 1

2.6   When hearing a family provision application, the court must determine whether:

•    the deceased person had responsibility to provide for the applicant, and

•    distribution of the deceased person’s estate by their will, intestacy laws,2 or both, makes adequate provision for the proper maintenance and support of the applicant.3

This is the first stage of the court’s decision-making process.

2.7   If the court finds that the deceased person did have such responsibility, and did not meet it, it then decides whether the applicant should receive an increased share of the estate, and the amount of any increased share they should receive.4 This is the second stage of the court’s decision-making process.

2.8   The High Court has described the two stages of the court’s decision-making process as ‘twin tasks’, but noted that it would be artificial to say that the exercise of discretion begins only when the judge has completed the first of their tasks and decided that the appellant was left without adequate provision for proper maintenance.5

2.9    At both stages of the decision-making process, the court must take into account a range of statutory factors.6

 

FOOTNOTES

 1   Administration and Probate Act 1958 (Vic) s 91(1). The County Court has had jurisdiction to hear and determine family provision applications ‘where the value of the estate does not exceed its jurisdictional limit’ since 1986: Courts Amendment Act 1986 (Vic) s 17(a); Administration and Probate Act 1958 (Vic) s 90 (definition of ‘Court’). However, the County Court now has unlimited civil jurisdiction, so the proviso about its jurisdictional limit is now obsolete: County Court Act 1958 (Vic) s 37, as amended by the Courts Legislation (Jurisdiction) Act 2006 (Vic) s 3.
 2   The operation of family provision was extended to distribution on intestacy in 1962: Administration and Probate (Family Provision) Act 1962 (Vic) ss 6 –11.
 3   Administration and Probate Act 1958 (Vic) ss 91(4)(a)–(b). The High Court characterised this first stage of the process as ‘jurisdictional’ in Singer v Berghouse (1994) 181 CLR 201, 208–9 (Mason CJ, Deane and McHugh JJ). The Supreme Court of Victoria has held that this characterisation of the court’s task still applies to the Victorian provisions following their amendment in 1997: Schmidt v Watkins [2002] VSC 273 (24 July 2002) [6] (Harper J).
 4   Administration and Probate Act 1958 (Vic) s 91(4)(c). The High Court characterised this second stage of the process as ‘discretionary’ in Singer v Berghouse (1994) 181 CLR 201, 211 (Mason CJ, Deane and McHugh JJ). The Supreme Court of Victoria has held that this characterisation of the court’s task still applies to the Victorian provisions following their amendment in 1997: Schmidt v Watkins [2002] VSC 273 (24 July 2002) [6] (Harper J).
 5   Goodman v Windeyer (1980) 144 CLR 490, 502 (Gibbs J).
 6   Administration and Probate Act 1958 (Vic) s 91(4).

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Thursday, February 7, 2013 - 14:00

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